The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventieth Day: Thursday, 28th February, 1946
(Part 4 of 9)


[Page 48]

The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions, and that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself committed no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the over-all accomplishment of the criminal enterprise. I should like to discuss the question of the further steps to be taken before this Tribunal.

Over 45,000 persons have joined in communications to the Tribunal asking to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but my study indicates that the difficulties are greatly exaggerated.

The Tribunal is vested with wide discretion as to whether it will entertain an application to be heard. The prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice, but to avoid appearance of doing anything less than justice. And we do not consider that expediting this trial is so important as affording a fair opportunity to present all really pertinent facts.

Analysis of the conditions which have brought about this flood of applications indicates that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of the right to appear before it and defend. They were sent to allied prisoner of war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. Investigation shows that the notice was posted in all barracks of the camps and it also shows that in many camps it was in addition, read to the prisoners. The 45,000 persons who responded with applications to be heard came principally from about fifteen prisoner of war and internment camps under British or United States control. Those received included an approximate 112,000 from Dachau, 10,000 from Langwasser, 7,500 from Auerbach, 4,000 from Staumahle, 2,500 from Garmisch, and several, hundred from each of the others.

[Page 49]

We have made some investigation of these applications, as well as of the sending out of the notices and we would be glad to place any information that we have at the disposal of the Tribunal.

An investigation was made of the Auerbach camp in the United States zone, principally to determine the reason for these applications and the method by which they came. That investigation was conducted by Lt.-Colonel Smith Brookhart, Captain Drexel Sprecher and Captain Krieger, all of whom are known to this Tribunal.

The Auerbach camp is for prisoners of war, predominantly SS members. Its prisoners number 16,964 enlisted men and 923 officers. The Notice of the International Tribunal was posted in each of the barracks and was read to all inmates. All applications to the Tribunal were forwarded without censorship of any kind. Applications to defend were made by 7,500 SS members.

Investigation indicates that these were filed in direct response to the notice and that no action was directed or inspired from any other source within or without the camp. All who were interrogated professed that they had no knowledge of any SS crimes or of SS criminal purposes, but they expressed interest only in their individual fate, rather than any concern to defend the organization.

Our investigators report no indication that they had any additional evidence or information to submit on the general question of the criminality of the SS as an organization. They seemed to think it was necessary to make the application here, in order to protect themselves.

Turning then to examination of the applications, these, on their face value indicate that most of the members do not profess to have evidence on the general issue triable here. They assert almost without exception that the writer has neither committed nor witnessed nor known of the crimes charged against the organization. On a proper definition of the issues such an application is insufficient on its face value, to warrant a personal intervention.

A careful examination of the notice to which these applications respond will indicate, I believe, that the notice contains no word which would inform a member, particularly if he were a layman, of the narrowness of the issues which are to be considered here, or that he will have a later opportunity, if and when prosecuted, to present personal defences. On the other hand the notice, it seems to me, creates the impression, particularly to a layman, that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. I think a careful examination of these notices will bear out that impression and a careful examination of the applications will show that they are in response to that impression.

Now, among lawyers there is usually a difference of opinion as to how best to proceed, and this case presents no exception: there are different ideas. But I shall advance certain views as to how we should proceed from here to obtain a fair and proper adjudication of these questions.

In view of these facts, we suggest a consideration of the following programme for completion of this trial as to organizations.

1. That the Tribunal formulate and express in an order, the scope of and the limitations on the issues to be heard by it.

2. That a notice adequately informing members as to the limitation of the issues and the opportunity later to be individually tried, be sent to all applicants and published in the same manner as the original notice.

3. That a panel of masters be appointed, as authorized in Article 17 (e) of the Charter, to examine applications and to report those that are insufficient on their own statements, and to go to the camps and supervise the taking of any relevant evidence, Defence counsel and prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal, to be introduced as a part of its record.

[Page 50]

4. The representative principle may also be employed to simplify the task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence.

It may not be untimely to remind the Tribunal and the defence counsel that the prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations, in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited.

Some concern has been expressed as to the number of persons who might be affected by the declarations of criminality which we have asked. Some people seem more susceptible to shock from a million punishments than to shock from five million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the Declaration of Criminality for which we have asked.

Figures from the German sources seriously exaggerate the number, because they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large. For example, the evidence is to the effect that seventy-five per cent. of the Gestapo men were also members of the SS. We know that the United States forces have, at a rough estimate 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the denazification programme, no one can foretell. Whatever the number, of one thing we may be sure - it is so large that a thorough inquiry by this Tribunal, into each case, would prolong its session beyond endurance. All questions as to whether individuals or sub- groups of accused organizations should be excepted from the Declaration of Criminality, should be left for local courts, located near the home of the accused and near the source of evidence. These courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific issues.

This is not the time to review the evidence against each particular organization which, we take it, should be reserved for summation after the evidence is all presented. But it is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: collectively they were the ultimate repositories of all power in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary.

The Nazi Leadership Corps consisted of the directors and principle executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German State. The Reich Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the armed forces, directed and controlled by the General Staff and High Command, and the police forces - the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime.

These organizations were also selected because, while representative, they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty. State officialdom is represented, but not all the administrative officials, department heads or civil servants; only the Reich Cabinet, the very heart of Nazidom within the Government, is named. The armed forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers - the General Staff and the High Command - are named. The police forces are accused - but not every policeman, not the ordinary police which performed only the

[Page 51]

normal police duties. Only the most terroristic and repressive police elements - the Gestapo and SD - are named. The Nazi Party is accused - but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only "the bearers of sovereignty," in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels.

I think it is important that we observe, in reference to the Nazi Party, just what it is that we are doing here and compare it with the denazification programme in effect without any Declaration of Criminality, in order to see in its true perspective the Indictment which we bring against the Nazi Party.

Some charts have been prepared. These are mere graphic representations of the proportion of persons that we have accused and which we ask this Tribunal to declare as constituting criminal organizations.

In the first column are the seventy-nine million German citizens. We make no accusation against the citizenry of Germany. The next is the forty-eight million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the denazification programme the supporters are included. Then come the five million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fealty. But we do not attempt to reach that entire five million persons, although I have no hesitation in saying that there would be good grounds for doing so; but it is not practicably possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy. So the voters are disregarded, the forty- eight million; the five million members are disregarded and the first that we propose to deal with are the Nazi leaders, starting with Blockleiter, who are shown in the last small block, and grouped together, amounting to the fourth block on the diagram.

It is true that we start with the local Blockleiter, but he had responsibilities; responsibilities for herding into the fold his fifty households; responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these Blockleiter were the essential elements in making this programme effective among the masses of the people and in terrorizing them into submission.

I submit that on this diagram, the accusation which we bring here is a moderate one, reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion.

We have also accused the formations, Party formations, such as the SA and the SS. These were the strong arms of the Party. These were the formations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of fifty houses.

But we do not accuse every one of the formations of the Party, nor do we accuse any of the twenty or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the Civil Servants Organization, the Teachers Organization and the National Socialist Lawyers Organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations. Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes and which actively participated in every crime denounced by the Charter, and furnished the manpower for most of the crimes which we have proved.

[Page 52]

In administering preventive justice with a view to forestalling repetition of these Crimes against Peace, Crimes against Humanity and War Crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire twenty-one individual defendants in the box. These defendants' power for harm is past. They are discredited men. That of these organizations goes on. If these organizations are exonerated here the German people will infer that they did no wrong and they will easily be regimented in reconstituted organizations under new names behind the same programme.

In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity.

I think my colleagues, who have somewhat different aspects of the case to deal with, would like to be heard on this subject.

THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such of the defendants' counsel as wish to be heard, and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.

MR. JUSTICE JACKSON: That will be very agreeable to us.

SIR DAVID MAXWELL FYFE: May it please the Tribunal: Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the prosecution, be dealt with. It is not my purpose to repeat or even to underline his arguments. My endeavour is to comply with paragraph 4 of the statement of the Tribunal made on 14th January of this year. This involves:-

(a) Summarizing in respect of each named organization, the elements which, in our opinion, justify the charge of their being criminal organizations. For convenience, I shall refer to these as the elements of criminality.

(b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants.

(c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal's third point.

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